Maisano Mediation Newsletter  
 
September - October 2013

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Happy end of summer to you!

I recently completed the latest in a handful of mediations involving wrongful death claims. These wrongful death claims are an expansion from the main focus of my work -- mediating employment and labor disputes. What I've learned is that premediation work is always essential, but particularly when there are two systems involved with limited common ground and/or even a shared language -- for example,  a dispute involving loving, grieving parents and a highly structured bureaucracy. Death of a family member is one of the major losses any of us experiences in our lifetimes, but when it is perceived as wrongful, it is particularly devastating. The surviving members often feel that placing blame will create a relief of some sort. Those of you who have litigated or mediated wrongful death suits know that no settlement  amount, not matter how high, ever offers full relief. Rather, it is the experience of being heard, understood and validated by the perceived responsible party that creates more durable closure.

 

In wrongful death cases, and in all mediations where the parties are significantly disparate in their perceptions of the case, this process starts in the premediation stage. As a mediator, I may spend significant time with each side explicating where the opposing party is and the nuances of their perspective. I have found that preparing both sides with this kind of narrative better prepares all parties to navigate the emotionality on the actual mediation day.

 

Be open to spending time helping your client more fully understand the other side's perspective in your preparation for all mediations, regardless of the type of case. This advance work equips you and your client to more efficiently and constructively reach a settlement that will meet the needs of both parties. Even more importantly, it will give all parties a leg up on managing the emotions that may derail and potentially stall the mediation process.

  

I look forward to seeing you and working with you soon.

 

Sincerely,

 

Nancy Maisano

[email protected] 

 
Tip from the Trenches --

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Take advantage of the premediation information exchange of memos and the preparation phone call with the mediator to fully prepare for and assess each case.

   

In one of my recent wrongful death cases, sorting through the intense emotions and the positions of the parties prior to the mediation was central to resolving the dispute.  The attorneys agreed to exchange mediation memos two weeks prior to our mediation date. As a result of the memo exchange, it became clear that the parties had such different case evaluations that the mediation looked like it could be unsuccessful and polarizing. Since it was a highly emotional and contentious case, neither party was willing to move from their originally stated position. The plaintiff attorneys wanted to shield their clients (grieving parents) from a failed and emotionally draining mediation.  They stated their preference to initiate litigation and postpone the mediation until after some discovery. However, the defendant had a significant interest in resolving the claim prior to the public filing of a lawsuit. As the mediator, I knew that both parties could benefit from a greater understanding of the other side's perspective before making the decision to pull the plug on the mediation. 

 

To salvage the mediation, I sought advice from subject-matter experts who could offer me a more comprehensive perspective on what each party might be managing in terms of emotions and liability. In turn I was able to offer these perspectives to both the plaintiff and defense attorneys who shared them with their clients. I conducted additional legal research on jury awards in similar cases and met with other mediators with experience handling similar wrongful death cases. The information exchange prior to the mediation took time, several phone calls with counsel and commitment from everyone involved to save the opportunity for an early mediation.

 

The result of the extensive premediation communications was that each side achieved a broadened view of the dispute and a greater understanding of the other side's perspective. The plaintiffs understood more fully the practical limitations on the defendant's case valuation and the risks of litigation. The defendants agreed to re-evaluate the case with its decision makers and enter the mediation with more flexible authority and open view of the case. The parties and counsel agreed to proceed with the mediation as scheduled and equipped with more information, more complete preparation, comfort and trust in the process. In the end, the case settled late in the evening on the mediation day - a result that would have been impossible but for the premediation communications.  

Recent Articles  

 

Los Angeles mediator Phyllis Pollack incorporates a scene from the television show "Taxi" in her latest blog about the importance of preparation before a negotiation.  Preparation is Key     

 

The Seventh Circuit decided recently that misconduct during a mediation can serve as a lawful basis for an employee's termination. In a caucus-style mediaton to resolve a current employee's discrimination claim, the employee/charging party became enraged, stormed into the employer's conference room and yelled, "You can take your proposal and shove it (expletive deleted) and fire me. I'll see you in court."  Within an hour, the employer fired the employee who in turn sued for retaliation under Title VII. Ultimately the Seventh Circuit upheld summary judgment granted by the magistrate in favor of the employer stating, "We cannot see why misconduct during mediation should be consequence free."  Benes v. A. B. Data Ltd.